Two Articles On Recording The Police

The US Supreme Court Inaction Yields To Right To Record Police Officers: "In November 2012 the US Supreme Court refused to revive a controversial Illinois law that prohibited audio recordings of police officers acting in public places, a ban that critics said violated the First Amendment of the U.S. Constitution. Without comment, the court on Monday let stand a May 8 ruling by the 7th U.S. Circuit Court of Appeals in Chicago that blocked enforcement of the law, which had made it a felony to record audio of conversations unless all parties consented."

Seven Rules For Recording Cops

Last week the
City of Boston agreed to pay Simon Glik $170,000 in damages and
legal fees to settle a civil rights lawsuit stemming from his 2007
felony arrest for videotaping police roughing up a suspect. Prior
to the settlement, the First Circuit Court of Appeals unanimously
ruled that Glik had a "constitutionally protected right to
videotape police carrying out their duties in public." The Boston
Police Department now explicitly instructs its officers not to
arrest citizens openly recording them in public.

Slowly but surely the courts are recognizing that recording
on-duty police is a protected First Amendment activity. But in the
meantime, police around the country continue to intimidate and
arrest citizens for doing just that. So if you're an aspiring cop
watcher you must be uniquely prepared to deal with hostile
cops.

If you choose to record the police you can reduce the risk of
terrible legal consequences and video loss by understanding your
state's laws and carefully adhering to the following rules.

Rule #1: Know the Law (Wherever You Are)

Conceived at a time when pocket-sized recording devices were
available only to James Bond types, most eavesdropping laws were
originally intended to protect people against snoops, spies, and
peeping Toms. Now with this technology in the hands of average
citizens, police and prosecutors are abusing these outdated laws to
punish citizens merely attempting to document on-duty police.

The law
in 38 states plainly allows citizens to record police, as long
as you don't physically interfere with their work. Police might
still unfairly harass you, detain you, or confiscate your camera.
They might even arrest you for some catchall misdemeanor such as
obstruction of justice or disorderly conduct. But you will not be
charged for illegally recording police.

Twelve states - California, Connecticut, Florida, Illinois,
Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire,
Pennsylvania, and Washington - require the consent of all parties for
you to record a conversation.

However, all but 2 of these states - Massachusetts and
Illinois - have an "expectation of privacy provision" to their
all-party laws that courts have ruled does not apply to on-duty
police (or anyone in public). In other words, it's technically
legal in those 48 states to openly record on-duty police.

Rule #2 Don't Secretly Record Police

In most states it's almost always illegal to record a
conversation in which you're not a party and don't have consent to
record. Massachusetts is the only state to uphold a conviction for
recording on-duty police, but that conviction was for a secret recording where
the defendant failed to inform police he was recording. (As in the
Glik case, Massachusetts courts have ruled that openly recording
police is legal, but secretly recording them isn't.)

Fortunately, judges and juries are soundly rejecting these laws.
Illinois, the state with the most notorious anti-recording laws in
the land, expressly forbids you from recording on-duty police.
Early last month an Illinois judge declared that law
unconstitutional, ruling in favor of Chris Drew, a Chicago artist
charged with felony eavesdropping for secretly recording his own
arrest. Last August a jury acquitted Tiawanda Moore of secretly
recording two Chicago Police Internal Affairs investigators who
encouraged her to drop a sexual harassment complaint against
another officer. (A juror described the case to a reporter as "a
waste of time.") In September, an Illinois state judge dropped
felony charges against Michael Allison. After running afoul of
local zoning ordinances, he faced up to 75 years in prison for
secretly recording police and attempting to tape his own trial.

The lesson for you is this: If you want to limit your legal
exposure and present a strong legal case, record police openly if
possible. But if you videotape on-duty police from a distance, such
an announcement might not be possible or appropriate unless police
approach you.

Rule #3: Respond to "Shit Cops Say"

When it comes to police encounters, you don't get to choose whom
you're dealing with. You might get Officer Friendly, or you might
get
Officer Psycho. You'll likely get officers between these
extremes. But when you "watch the watchmen," you must be ready to
think on your feet.

In most circumstances, officers will not immediately bull rush you for filming
them. But if they aren't properly trained, they might feel like
their authority is being challenged. And all too often police are
simply ignorant of the law. Part of your task will be to convince
them that you're not a threat while also standing your ground.

"What are you doing?"

Police aren't celebrities, so they're not always used to being
photographed in public. So even if you're recording at a safe
distance, they might approach and ask what you are doing. Avoid
saying things like "I'm recording you to make sure you're doing
your job right" or "I don't trust you."

Instead, say something like "Officer, I'm not interfering. I'm
asserting my First Amendment rights. You're being documented and
recorded offsite."

Saying this while remaining calm and cool will likely put police
on their best behavior. They might follow up by asking, "Who do you
work for?" You may, for example, tell them you're an independent
filmmaker or a citizen journalist with a popular
website/blog/YouTube show. Whatever you say, don't lie - but don't
let police trick you into
thinking that the First Amendment only applies to mainstream media
journalists. It doesn't.

But how can you tell if an officer asking for ID has reasonable
suspicion? Police need reasonable suspicion to detain you, so one
way to tell if they have reasonable suspicion is to determine if
you're free to go. You can do this by saying "Officer, are you detaining me, or am
I free to go?"

If the officer says you're free to go or you're not being
detained, it's your choice whether to stay or go. But if you're
detained, you might say something like, "I'm not required to show
you ID, but my name is [your full name]." It's up to you if you
want to provide your address and date of birth if asked for it, but
I'd stop short of giving them your Social Security number.

"Please stop recording me. It's against the law."

Rarely is it advisable to educate officers about the law. But in
a tense recording situation where the law is clearly on your side,
it might help your case to politely present your knowledge of
state law.

For example, if an insecure cop tries to tell you that you're
violating his civil liberties, you might respond by saying
"Officer, with all due respect, state law only requires permission
from one party in a conversation. I don't need your permission to
record so long as I'm not interfering with your work."

If you live in one of the 12 all party record states, you might
say something like "Officer, I'm familiar with the law, but the
courts have ruled that it doesn't apply to recording on-duty
police."

If you're approaching the scene of an investigation or an
accident, police will likely order you to move back. Depending on
the circumstances, you might become involved in an intense
negotiation to determine the "appropriate" distance you need to
stand back to avoid "interfering" with their work.

If you feel you're already standing at a reasonable distance,
you may say something like, "Officer, I have a right to be here.
I'm filming for documentation purposes and not interfering with
your work." It's then up to you to decide how far back you're
willing to stand to avoid arrest.

Rule #4: Don't Share Your Video with Police

If you capture video of police misconduct or brutality, but
otherwise avoid being identified yourself, you can anonymously
upload it to YouTube. This seems to be the safest legal option. For
example, a
Massachusetts woman who videotaped a cop beating a motorist with a
flashlight posted the video to the Internet. Afterwards, one of
the cops caught at the scene filed criminal wiretapping charges
against her. (As usual, the charges against her were later
dropped.)

On the other hand, an anonymous videographer uploaded footage of
an NYPD officer body-slamming
a man on a bicycle to YouTube. Although the videographer was
never revealed, the video went viral. Consequently, the
manufactured assault charges against the bicyclist were dropped,
the officer was fired, and the bicyclist eventually sued the city
and won a $65,000 settlement.

Rule #5: Prepare to be Arrested

Keene, New Hampshire resident Dave Ridley is the avatar of the
new breed of journalist/activist/filmmaker testing the limits of
the First Amendment right to record police. Over the past few years
he's uploaded the most impressive collection of first-person police
encounter videos I've ever seen.

Ridley's calm demeanor and knowledge of the law paid off last
August after he was arrested for trespassing at an event featuring
Vice President Joe Biden. The arresting officers at his trial
claimed he refused to leave when ordered to do so. But the judge
acquitted him when his confiscated video proved otherwise.

With respect to the law Ridley declares, "If you're rolling the
camera, be very open and upfront about it. And look at it as a
potential act of civil disobedience for which you could go to
jail." It's indeed disturbing that citizens who are not breaking
the law should prepare to be arrested, but in the current legal fog
this is sage advice.

"Shut it off, or I'll arrest you."

At this point you are risking arrest in order to test the
boundaries of free speech. So if police say they'll arrest you,
believe them. You may comply by saying something like "Okay,
Officer. But I'm turning the camera off under protest."

If you keep recording, brace yourself for arrest. Try your best
not to drop your camera, but do not physically resist. As with
any arrest, you have the right to remain silent until you speak
with a lawyer. Use
it.

Remember that the camera might still be recording. So keep calm
and act like you're being judged by a jury of millions of your
YouTube peers, because one day you might be.

If you're one of them, you should consider installing a
streaming video recording and sharing app such as Qik or Bambuser. Both apps are free and easy to
use.

Always Passcode Protect Your Smartphone

The magic of both apps is that they can instantly store your
video offsite. This is essential for preserving video in case
police illegally destroy or confiscate your camera. But even with
these apps installed, you'll want to make sure that your device is
always
passcode protected. If a cop snatches your camera, this will
make it
extremely difficult for her to simply delete your videos. (If a
cop tries to trick you into revealing your passcode, never, never,
never give it up!)

Keep in mind that Qik and Bambuser's offsite upload feature
might be slow or nonexistent in places without Wi-Fi or a strong
3G/4G signal. Regardless, your captured video will be saved locally
on your device until you've got a good enough signal to upload
offsite.

Set Videos to "Private"

Both apps allow you to set your account to automatically upload
videos as "private" (only you can see them) or "public" (everyone
can see them). But until police are no longer free to
raid the homes of citizens who capture and upload YouTube videos of
them going berserk, it's probably wise to keep your default
setting to "private."

With a little bit of practice you should be able to pull your
smartphone from your pocket or purse, turn it on, enter your
passcode, open the app, and hit record within 10 seconds. Keep your
preferred app easily accessible on your home screen to save
precious seconds. But don't try to shave milliseconds off your time
by disabling your passcode.

Both apps share an important feature that allows your video to
be saved if your phone is turned off - even if you're still
recording. So if you anticipate that a cop is about to grab your
phone, quickly turn it off. Without your passcode, police won't be
able to delete your videos or personal information even if they
confiscate or destroy your phone.

With the iPhone 4 and Samsung Galaxy Android devices I tested,
when the phone is turned off the Qik app immediately stops
recording and uploads the video offsite. But if the phone is turned
off while Bambuser records, the recording continues after the
screen goes black.

This Bambuser "black out" feature is a double-edged sword. While
it could easily trick cops into thinking you're not recording them,
using it could push you into more dangerous legal territory. As
previously mentioned, courts have shown a willingness to convict
citizens for secretly recording police. So if you're somehow caught
using this feature it might be easier for a prosecutor to convince
a judge or jury that you've broken the law. It's up to you to
decide if the increased legal risk is worth the potential to
capture incriminating police footage.

Other Recording Options

Cameras lacking offsite recording capability are a less
desirable option. As mentioned earlier, if cops delete or destroy
your footage - which happens
way too
often - you might lose your only hope of challenging their
version of events in court. But if you can hold on to your camera,
there are some good options.

Carlos Miller is a Miami-based photojournalism activist and
writer of the popular Photography is Not a Crime blog. While he carries a professional-end Canon XA10 in
the field, he says "I never leave home without a Flip camera on a belt
pouch. It's a very decent camera that's easier to carry
around."

The top-of-the-line Flip UltraHD starts at $178, but earlier
models are available for
$60 on Amazon. All flip models have one-button recording, which
allows you to pull it out of your pocket and shoot within seconds.
The built-in USB then lets you upload video to YouTube or other
sharing sites through your PC.

Small businessman and "radical technology" educator Justin Holmes recommends the Canon
S-series line of cameras. In 2008, his camera captured a police
encounter he had while rollerblading in Port Dickenson, New York.
His footage provides an outstanding real-life example of how
a calm camera-toting citizen can intelligently flex their
rights.

"I typically carry a Canon S5-IS," Holmes says. "But if I was
going to buy one new, I'd go for the SX40-HS. If I were on a budget
and buying one used, I'd go for S2-IS or S3-IS." The features he
regards as essential include one-touch video, high-quality stereo
condenser microphones, fast zoom during video, and 180x270 variable
angle LCD. But the last feature he regards as "absolutely
essential." With it the user can glance at the viewfinder while the
camera is below or above eye level.

Rule #7: Don't Point Your Camera Like a Gun

"When filming police you always want to avoid an aggressive
posture," insists Holmes. To do this he keeps his strap-supported
camera close to his body at waist level. This way he can hold a
conversation while maintaining eye contact with police, quickly
glancing at the viewfinder to make sure he's getting a good
shot.

Obviously, those recording with a smartphone lack this angled
viewfinder. But you can get a satisfactory shot while holding your
device at waist level, tilting it upward a few degrees. This
posture might feel awkward at first, but it's noticeably less
confrontational than holding the camera between you and the
officer's face.

Also try to be in control of your camera before an officer
approaches. You want to avoid suddenly grasping for it. If a cop
thinks you're reaching for a gun, you could get shot.

Becoming a Hero

If you've recently been arrested or charged with a crime after
recording police, contact a lawyer with your state's ACLU chapter
for advice as soon as possible. (Do not publicly upload your video
before then.) You may also contact Flex Your Rights via Facebook or Twitter. We're not a
law firm, but we'll do our best to help you.

If your case is strong, the
ACLU might offer to take you on as a litigant. If you accept,
your brave stand could forever change the way police treat citizens
asserting their First Amendment right to record police. This path
is not for fools, and it might disrupt your life. But next time you
see police in action, don't forget that a powerful tool for truth
and justice might literally be in your hands.

How To Record The Cops

This summer the issue of recording on-duty police officers has
received a great deal of media attention. Camera-wielding citizens
were arrested in Maryland, Illinois, and Massachusetts under
interpretations of state wiretapping laws, while others were
arrested in New Hampshire, Ohio, Oregon, Florida, and elsewhere
based on vaguer charges related to obstructing or interfering with
a police officer.

So far Massachusetts is the only state to explicitly uphold a
conviction for recording on-duty cops, and Illinois and
Massachusetts are the only states where it is clearly illegal. The
Illinois law has yet to be considered by the state's Supreme Court,
while the Massachusetts law has yet to be upheld by a federal
appeals court. Maryland Attorney General Douglas Gansler recently
issued an opinion concluding that arrests for recording cops are
based on a misreading of the state's wiretapping statute, but that
opinion isn't binding on local prosecutors.

In the remaining 47 states, the law is clearer: It is generally
legal to record the police, as long as you don't physically
interfere with them. You may be unfairly harassed, questioned, or
even arrested, but it's unlikely you will be charged, much less
convicted. (These are general observations and should not be
treated as legal advice.)

One reason this issue has heated up recently is that the
democratization of technology has made it easier than ever for just
about anyone to pull out a camera and quickly document an encounter
with police. So what's the best way to record cops? Here is a quick
rundown of the technology that's out there.

Cameras without wireless networking capabilities are the least
attractive option. If they are destroyed or confiscated, you have
probably lost the damning video you just recorded, including the
video documenting how your camera was confiscated or destroyed. But
provided you can hold on to your camera, digital video recorders
today are inexpensive, small, and wonderfully practical. The
best-known everyday, easy-to-use brand right now is probably the
Flip Video line, which start at $149. Even the cheapest flips fit in your pocket, power up in about three seconds, and feature
one-button recording. They are also easy to use. They include a
built-in USB port and instant formatting for sites such as LiveLeak and YouTube.

Kodak has a pocket video camera for $100, and Amazon list a
couple dozen different flash-memory cameras for under $50. Still too expensive? For $20, this camera sold at USBGeek is shorter than a stick of gum and shoots 640 x 480 video at 30 frames per second. It has a memory slot to hold up to 32GB of memory and a two-hour battery life. camera.
It's tiny, has the advantage of not looking much like a camera,
shoots 720x480 video at 30 frames per second, and sells for all of
$12 (with free shipping) at Meritline.com.

Last year's demonstrations in Iran and the 2009 police shooting
of Oscar Grant on a subway platfom in Oakland, California were very
public incidents, with dozens of cell phones taking photos and
video as they happened. Authorities could not possibly have
confiscated every phone camera (although in both cases they tried).
But in other cases, police confiscate cameras, and when they are
returned the potentially incriminating video or photos are gone.
But technology is helping there too.

If you find your files or videos have been deleted once your
camera has been returned, your best option is to look into recovery
software, which in many cases can bring the deleted files back.
Don't use the phone or camera until you've tried the software.

The better option, though, is to use a camera with networking
capabilities. We're increasingly seeing spy movies-come-to-life
cameras like
this Bluetooth device from Looxcie, which you wear over your
ear and lets you instantly email video, but the same technology is
also standard now in most smart phones. The ability to store audio
or video off site - to email it to friends (or yourself), or to
upload it to social networking sites - is becoming more and more
accessible. And it's a pretty powerful check on government, as
shown by the Iran demonstrations, the Grant shooting, and the
alleged police abuses shown in hundreds of videos uploaded to video
sharing sites.

Qik and
UStream, two services available for both the iPhone and Android
phones, allow instant online video streaming and archiving. Once
you stop recording, the video is instantly saved online. Both
services also allow you to send out a mass email or notice to your
Twitter followers when you have posted a new video from your phone.
Not only will your video of police misconduct be preserved, but so
will the video of the police officer illegally confiscating your
phone (assuming you continue recording until that point).

Neither Qik nor UStream market themselves for this purpose, and
it probably would not make good business sense for them to do so,
given the risk of angering law enforcement agencies and attracting
attention from regulators. But it's hard to overstate the power of
streaming and off-site archiving. Prior to this technology,
prosecutors and the courts nearly always deferred to the police
narrative; now that narrative has to be consistent with
independently recorded evidence. And as examples of police reports
contradicted by video become increasingly common, a couple of
things are likely to happen: Prosecutors and courts will be less
inclined to uncritically accept police testimony, even in cases
where there is no video, and bad cops will be deterred by the
knowledge that their misconduct is apt to be recorded.

But there is still room for improvement. With both Qik and
UStream, you can delete your uploaded videos from your phone, which
means that if your phone is confiscated before you can turn it off
(or if you keep your phone unlocked), whoever took it can get into
your account and erase your evidence. One not terribly reliable way
around this problem would be to encourage any of your friends or
Twitter followers who happen to be online at the time to download
your video the moment they get notice of it. But it would be far
better if you had the option to make your videos deletable only
once you've logged in from a computer. Another improvement would be
the ability to "black out" the phone while it's taking video, so it
isn't so obvious that you're recording.

UStream and Qik are not likely to add either function, since
both are beneficial only for people who want to make surreptitious
recordings. But how about an ACLU or NAACP app designed
specifically for recording police? The NAACP's project encourages people to report incidents of police abuse
through a toll-free phone number, text messages, or Twitter. But
the process for registering a complaint is pretty cumbersome, and
the program doesn't allow instant streaming and archiving.

Scott Morgan of Flex Your
Rights, which educates people about their rights during police
encounters, says his organization has been exploring the
possibility of offering such a service. "I think it's a great
idea," Morgan says. "We've talked to a couple developers about it.
I think the problem for a small group like us is getting server
space for videos and working out the networking issues." Globally,
it would make great sense for an organization like Amnesty
International or Human Rights Watch to develop a similar
easy-to-use application, allowing people all over the world to
emulate the instant documentation we saw during the protests in
Iran.

The dizzying advancements in personal technology during the last
decade have slipped a powerful government accountability tool into
our pockets. But it happened mostly by accident. The technology was
intended for other uses, and it still needs some fine tuning to
work better as a protection against abuses of state power. It's
hard to think of a more worthy project for a civil liberties
group.